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Jewish Law in American Tribunals

Published online by Cambridge University Press:  12 February 2016

Bernard J. Meislin
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Extract

The First Amendment to the United States Constitution erects, in Thomas Jefferson's phrase, “a wall of separation between church and state”. The United States Supreme Court has, with a consistency not evident in all areas of constitutional law, supported the “wall of separation” metaphor even in the face of warnings that “a rule of law should not be drawn from a figure of speech”. The origin of the phrase has been traced to the words of Roger Williams, the founder of the colony of Rhode Island in 1636, who, in his concern over worldly corruption infecting the churches, wrote of “the hedge or wall of separation between the garden of the church and the wilderness of the world…”. With this imposing legal history behind it, the principle of non-intrusion of religious law into American civil law should stand on incorruptible footing. Yet, a survey of recent cases discloses principles of Jewish law relied upon by litigants and on occasion by judges in controversies before tribunals in the United States.

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Articles
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Israel Law Review , Volume 7 , Issue 3 , July 1972 , pp. 349 - 360
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1972

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References

1 16 Writings of Thomas Jefferson (1903) 281–82.

2 Justice Reed in McCollum v. Board of Education 333 U.S. 203, at p. 247 (1948).

3 Miller, Perry, “Mr. Cotton's Letter Lately Printed, Examined and Answered” in Williams, Roger, His Contribution to the American Tradition (1953) 89 at p. 98.Google Scholar

4 Wener v. Wener, 59 Misc. 2d 957, 301 N.Y.S. 2d 237 (1969), aff'd. 35 App. Div. 2d 50, 312 N.Y.S. 2d 815 (1970).

5 The court also could find no precedent “in the Napoleonic Code nor in the Code of Justinian”, although it found indications “that the Chinese law on the subject is the same as the Jewish law”. 59 Misc. 2d at p. 960.

6 Ibid., Judge Multer, the lower court Judge, in defending his decision against criticism in Topol, (1969) 4 Is.L.R. 578 responded in “Further Comment on Wener v. Wener” (1970) 5 Is.L.R. 463 at p. 464: “Even though alternative theories for reaching the same result may have been available, it was proper to look to Jewish law for evidence of the intent of the parties. The Ketuba, the marriage agreement of the parties, established that intent as forcefully as their acts and conduct did”.

7 Topol, Allan J., “Jewish Law: A Misapplication in New York?” (1969) 4 Is.L.R. 578 Google Scholar; 15 N.Y. Law Forum 973.

8 Wener v. Wener, 35 App. Div. 2d 50 (1970).

9 Wener v. Wener, loc. cit., at p. 54.

10 32 App. Div. 2d 16; 298 N.Y.S. 2d 772 (1969).

11 Ibid., at p. 17.

12 Ibid., at p. 18.

13 Ibid., at p. 19.

14 Ibid., at p. 21.

15 Hill v. Hill 19 Misc. 1035, 104 N.Y.S. 2d 755 (1951); Michelman v. Michelman 5 Misc. 2d 570, 135 N.Y.S. 2d 608 (1954).

16 In re the Estate of Jacob J. Jacobovitz 58 Misc. 2d. 330, 295 N.Y.S. 2d 527 (1968).

17 Agur v. Agur, supra p. 350.

18 64 Misc. 2d 109, 314 N.Y.S. 2d 439 (1970).

19 Ibid., at p. 113.

20 New York Civil Practice Law and Rules, 7506(a).

21 Kozlowski v. Seville Syndicate, Inc., see supra n. 18, at p. 119. Ultimately, however, the court held the arbitration invalid because the award given by the rabbi was only “a partial one” and it was not possible to tell whether the hearings held by the rabbi covered all the claims submitted to him for decision.

22 Ibid., at p. 115.

23 Ibid., at p. 115.

24 Hellman v. Wolbrom 31 App. Div. 2d 477, 298 N.Y.S. 2d 540 (1969).

25 Ibid., at p. 482.

26 Time Magazine, “The Black and the Jew: A Falling Out of Allies” (January 31, 1969); The Wall Street Journal (Sept. 9, 1968) p. 1, col. 4; Lindeman, “Urban Crises and Jewish Law” (March, 1969) Hadassah Magazine 10; “Rabbinical Courts: Modern Day Solomons” (1970) 6 Columbia Journal of Law and Social Problems 49.

27 The Wall Street Journal, supra, n. 26.

28 Ibid.

29 See Leibovici v. Rawicki 57 Misc. 2nd 141 (1968).

30 Salo Baron, W., A Social and Religious History of the Jews (1967) Vol. XII, p. 192.Google Scholar

31 Leibovici v. Rawicki, supra n. 29, at pp. 142–143.

32 Ibid., p. 144.

33 “For a lender to receive no interest but a share of profits which may or may not exceed the legal rate is not usury (Johnston v. Ferris, 14 Daly 302; N.Y. St. Rep. 666; Davis v. Myers, 86 Hun 236; 32 N.Y. Jur., Interest and Usury §41).

It has been held that an investment in property in the nature of a joint venture is not converted into a loan of money and therefore usurious, by the fact that one party guarantees the other against loss on the capital advanced by him and that his profits shall amount to a certain sum (Orvis v. Curtiss, 157 N.Y. 657, 661, 662).” Ibid., pp. 144–5.

34 Bentham, Jeremy, “Defense of Usury” The Works of Jeremy Bentham, Vol. III (Edinburgh, William Tait, 1843).Google Scholar Bentham saw the persistence of usury in historical causes “the erroneousness of which” he sought to publicize: “What made [lending at interest] much the worse was that it was acting like a Jew, for though all Christians at first were Jews, and continued to do as Jews did, after they had become Christians, yet in process of time, it came to be discovered, that the distance between the mother and daughter church could not be too wide.

By degrees, as old conceits gave place to new, nature so far prevailed, that the objections to getting money in general were pretty well over-ruled; but still this Jewish way of getting it was too odious to be endured. Christians were too intent upon plaguing Jews, to listen to the suggestion of doing as Jews did, even though money were to be got by it. Indeed, the easier method, and a method pretty much in vogue, was to let the Jews get the money any how they could, and then squeeze it out of them as it was wanted.” (p. 16).

35 Homer, Sidney, A History of Interest Rates (New Brunswick, N.J., Rutgers University Press, 1963) 187.Google Scholar

36 Henry and Pierce v. The Bank of Salina 5 Hill 523 (1843).

37 Ibid., p. 528.

38 Overholt v. National Bank of Mt. Pleasant 82 Pa.St. 490, at 493 (1876).

39 American Book Company v. Yeshiva University Development Foundation Inc. 59 Misc. 2d 31 (1969).

40 Ibid., p. 36.

41 Lucey v. Torrence 309 N.Y.S. 2d 755 (1970).

42 ibid., p. 756.

43 “Bradford Const. Co. Inc. v. Mikvah Israel of Boro Park” (February 1969) New York Law Journal 11.

44 S.S. & B. Live Poultry Corp. v. Kashrut Ass'n. of Greater New York 158 Misc. 358, 285 N.Y.S. 879 (1936).

45 Cohen v. Silver 277 Mass. 230, 178 N.E. 508 (1931).

46 Ibid., p. 235.

47 People v. Gordon 172 Misc. 543, 14 N.Y.S. 2d 333 (1939).

48 Cohen v. Eisenberg 173 Misc. 1089, 19 N.Y.S. 2d 678 (1940), aff'd 260 App. Div.1014, 24 N.Y.S. 2d 1004 (1941).

49 Cabinet v. Shapiro 17 N.J. Super., 540, 86A. 2d 314 (1952).

50 N. Y. Agric. & Mkts. Law §201-a.

51 People v. Gordon see supra, n. 47.

52 People v. Gordon 258 App. Div. 421, 16 N.Y.S. 2d 833 (1940), aff'd 283 N.Y. 705, 28 N.E. 2d 717 (1940).

53 See Greenwald v. Noyes 172 Misc. 780, 17 N.Y.S. 2d 707 (1939).

54 Cohen v. Eisenberg, see supra, n. 48 and Cabinet v. Shapiro, see supra, n. 49.

55 Cabinet v. Shapiro, ubi supra.

56 Cohen v. Eisenberg, ubi supra.

57 Ansubel, , The Book of Jewish Knowledge (New York, Crown Publishers, 1964) 87.Google Scholar

58 Ibid.

59 Roth, and Wigoder, , The New Standard Jewish Encyclopedia (New York, Doubleday & Co., 1970) 425.Google Scholar

60 Hearde v. Commissioner of Internal Revenue 421 F. 2d 846 (Court of Appeals, 9th Cir., 1970); Lingenfelder v. Commissioner of Internal Revenue 38 T.C. 5 (1962).